Cleophas Bradley v. Department of Homeland Security
2016 MSPB 30
| MSPB | 2016Background
- Appellant Cleophas Bradley, GS-14 Deputy Regional Director at FPS (DHS), filed an IRA whistleblower appeal after prior IRA dismissal; he alleged retaliation including investigations, a letter of counseling, and nonselection for Region 5 Director.
- He exhausted OSC remedies and alleged numerous disclosures between March–September 2011 to supervisors and agency officials concerning contractor suitability, an explosive-device security breach, and alleged false testimony to Congress.
- The regional administrative judge dismissed for lack of jurisdiction, finding (1) some alleged disclosures were not protected and (2) Bradley failed the knowledge/timing test to show his disclosures were a contributing factor in the nonselection; the judge applied collateral estoppel to decline reconsideration of matters litigated in Bradley’s prior IRA appeal.
- On review the Board found Bradley nonfrivolously alleged protected disclosures (six specific disclosures) and that he nonfrivolously alleged his disclosures contributed to his nonselection, rejecting the administrative judge’s narrow application of the knowledge/timing test.
- The Board remanded for further adjudication, directing the administrative judge to permit discovery prior to a merits hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant made protected disclosures under 5 U.S.C. § 2302(b)(8) | Bradley alleged multiple communications revealing violations, gross mismanagement, and safety risks (contractor suitability, security breach, false testimony) | Agency argued some alleged communications were not disclosures or were policy disagreements not covered by WPA | Held: Bradley nonfrivolously alleged six protected disclosures; several other allegations were not protected at jurisdictional stage |
| Whether disclosures were a contributing factor in nonselection | Bradley argued selecting officials (or those who influenced them) knew of disclosures, alleged conspiracy and that selecting official(s) interviewed him and had knowledge | Agency relied on panel-based selection and absence of actual knowledge by panel members; administrative judge applied knowledge/timing test and found no jurisdiction | Held: Board rejected rigid reliance on knowledge/timing; constructive knowledge and influence theory may establish contributing factor; Bradley nonfrivolously alleged contributing factor |
| Applicability of collateral estoppel to bar reconsideration of prior-asserted personnel actions | Bradley sought to reassert investigations and counseling as retaliatory personnel actions in this IRA | Agency/aj contended those matters were litigated in prior IRA and barred by collateral estoppel | Held: Administrative judge applied collateral estoppel below; Board did not disturb the determination about exhaustion of OSC for any additional disclosures but remanded to allow discovery and further adjudication (Board implicitly limited collateral estoppel use at jurisdictional stage) |
| Discovery and evidentiary posture for nonselection claims | Bradley contended key selection-process evidence and knowledge are in agency control and discovery is needed to substantiate contributing-factor allegations | Agency opposed further proceedings relying on documentary submissions asserting no knowledge by panel | Held: Remanded for further adjudication and ordered that the parties be permitted to complete discovery before hearing on the merits |
Key Cases Cited
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (establishes jurisdictional requirements for IRA appeals: protected disclosure and contributing factor)
- Cahill v. Merit Systems Protection Board, 821 F.3d 1370 (Fed. Cir. 2016) (plaintiff need not identify precisely which managers committed reprisal at jurisdictional stage)
- Salerno v. Department of the Interior, 123 M.S.P.R. 230 (M.S.P.B. 2016) (contributing-factor standard and knowledge/timing test explained)
- Aquino v. Department of Homeland Security, 121 M.S.P.R. 35 (M.S.P.B. 2014) (constructive knowledge and influence evidence can establish contributing factor)
- Ingram v. Department of the Army, 114 M.S.P.R. 43 (M.S.P.B. 2010) (agency documentary contradictions cannot be resolved against appellant at jurisdictional nonfrivolous stage)
- Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329 (M.S.P.B. 2007) (discovery appropriate where selection-process evidence is within agency possession)